NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS JUN 30 2021
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA, No. 20-10433
Plaintiff-Appellee, D.C. No. 1:14-cr-00688-HG-1
v.
MEMORANDUM*
LUKE WARNER, AKA Lucky,
Defendant-Appellant.
Appeal from the United States District Court
for the District of Hawaii
Helen W. Gillmor, District Judge, Presiding
Submitted June 21, 2021**
Before: SILVERMAN, WATFORD, and BENNETT, Circuit Judges.
Luke Warner appeals from the district court’s order denying his motion for
compassionate release under 18 U.S.C. § 3582(c)(1)(A)(i). We have jurisdiction
under 28 U.S.C. § 1291, and we vacate and remand for the district court to
reconsider Warner’s motion.
*
This disposition is not appropriate for publication and is not precedent
except as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision
without oral argument. See Fed. R. App. P. 34(a)(2).
As a preliminary matter, we exercise our discretion under Federal Rule of
Appellate Procedure 4(c)(1)(B) and accept Warner’s declaration, accompanied by
outgoing mail receipts, that he deposited his notice of appeal with the prison
authorities 12 days after entry of the district court’s order. We accordingly reject
the government’s argument that Warner’s notice of appeal was untimely. See Fed.
R. App. P. 4(b)(1)(A), (c)1).
Turning to the merits, the district court concluded that Warner had not
shown “extraordinary and compelling” reasons warranting his release. 18 U.S.C.
§ 3582(c)(1)(A)(i). It appears that in doing so, the district court may have treated
U.S.S.G. § 1B1.13 as binding. After the district court’s decision, we held that “the
current version of U.S.S.G. § 1B1.13 is not an applicable policy statement for
§ 3582(c)(1)(A) motions filed by a defendant.” United States v. Aruda, 993 F.3d
797, 802 (9th Cir. 2021) (internal quotation marks and alterations omitted). “The
Sentencing Commission’s statements in U.S.S.G. § 1B1.13 may inform a district
court’s discretion for § 3582(c)(1)(A) motions filed by a defendant, but they are
not binding.” Id.
In light of our intervening decision in Aruda, we vacate and remand so that
the district court can reassess Warner’s motion for compassionate release under the
standard set forth there. We offer no views as to the merits of Warner’s
§ 3582(c)(1)(A)(i) motion, and we leave it to the district court to consider his new
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allegation that he has since contracted COVID-19.
In light of this disposition, we do not reach Warner’s remaining contentions.
Warner’s motions to file an untimely, oversized reply brief and exhibits
under seal are granted. The Clerk will file under seal the reply brief and exhibits at
Docket Entry No. 33.
Warner’s motion for service of filings is granted. The Clerk will serve on
appellant a copy of appellant’s filings at Docket Entry Nos. 31 and 33.
Warner’s motions to submit supplemental information, and all other pending
motions, are denied. The motions and attachments at Docket Entry Nos. 12 and 39
will remain under seal.
VACATED AND REMANDED.
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